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Michael M.X. Buchet
National Safety Council
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Re: Comments on ACCSH draft proposal on Multi-Employer Worksites
Dear Mr. Buchet:
We are writing to provide the comments of Baron Malow Company on the draft proposal that was furnished by your fax dated May 29,1999
a.(1) The second sentence should be rewritten to say: "the level of action required for an exposing employer to meet a reasonable care standard may be higher than for other citable employers. The exposing employer must inspect with reasonable frequency and care to prevent hazards to its employees and must promptly correct hazards that it finds."
c. We believe the "Note" adds confusion to the concept of a correcting employer. We believe the concept should be limited to a contractor that is hired for a specific safety task, such as the maintenance of guardrails in the example.
d. At the end of line 2, add "safety practices of the", so that the controlling employer or manager is one who has "the authority to manage the safety practices of the exposing, creating or correcting employer."
e.(2) this provision is very vague and difficult to apply. We are not clear why the provision is needed in view of subparagraph (3).
e.(3) Change heading to: "Responsibility in Fact to Control Work". At the end of the line three add: "With respect to safety-related matters".
e.(4)(a) Add at the end: "despite having a duty to do so", so that the controlling employer will be cited for failure to prevent or correct a violation only if it had a duty to do so.
(e)(4) Example: The facts might be construed to imply that a general contractor must take all these steps to avoid citation. When an experienced electrical subcontractor. Has been hired, however, it is unrealistic and unnecessary for a general contractor to ask whether the subcontractor has done the required tests and has complied with the pertinent safety requirements. General contractors should not be forced to make formulaic inquiries on such matters to protect themselves against citations.
e.(5) Change heading to:" A checklist of some factors bearing on reasonable care":
Add a new e.(6) as follows:
Unless otherwise provided by contract, the safety responsibility of the controlling employer or manager is limited to common work areas. These are areas in which a substantial number of workers from multiple employers are exposed to similar tasks. The controlling employer is not responsible for failing to detect unsafe conditions in a work are that is not a common work area where the trade contractor working in that area has retained responsibility for its own construction means and methods.
Example 1: A temporary catwalk is used by carpenters, electricians, and painters to access a particular room where they are all working, if the general contractor has a reasonable opportunity to identify, during its periodic walk-throughs of the project site, that the guard railing has been removed by one of the trades, it ahs the responsibility for assuring that the guard railing is promptly restored.
Example 2: During a given week, only the mechanical subcontractor is performing work in a particular room. An employee of the mechanical subcontractor uses a scaffold the mechanical contractor erected for its own use without the required guardrail protection. The general contractor should not be cited.
Thank you for the opportunity to comment on these matters. Please let us know if you desire clarification regarding any of our comments. We will be interested to hear about the outcome of the deliberations on the workgroup's proposal.
Very truly yours,
John A. Gleichman
Director of Safety and Loss Control
Thomas W.B. Porter
Vice President and General Counsel
cc. Mark Bahr